Cornejo Vilcachugua (Migration)

[2019] AATA 3266

Cornejo Vilcachugua (Migration) [2019] AATA 3266 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joseph Jonathan Cornejo Vilcachugua

CASE NUMBER:  1823407

HOME AFFAIRS REFERENCE(S):          BCC2016/1899127

MEMBER:Stavros Georgiadis

DATE:3 April 2019

PLACE OF DECISION:  Adelaide

:

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.223 of Schedule 2 to the Regulations.

Statement made on 03 April 2019 at 5:18pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – character assessment – evidence provided – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.223, r 2.03AA, Public Interest Criterion (PIC) 4001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 May 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.223 as the applicant could not meet Public Interest Criterion 4001 in respect of character assessment.

4. The applicant appeared before the Tribunal on 28 March 2019 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the applicant meet required Schedule 2 criteria or should the criteria be waived?

6. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 2 to the Regulations. Relevantly, this includes in the present case, Public Interest Criterion (PIC) 4001.

7. Subclause 820.223(1) in part states as follows:

   820.22 Criteria to be satisfied at time of decision

   820.223

   (1) The applicant:
   (a) subject to subclause (2) — satisfies public interest criteria 4001, 4002,
   4003, 4004, 4007 and 4009; and

   (b) if the applicant had turned 18 at the time of application — satisfies public
   interest criterion 4019.

8. At the time of decision an applicant must satisfy clause 820.223, which requires that the applicant meets several public interest criteria, including PIC 4001.

9. PIC 4001 requires an assessment of a person against the terms of the ‘character test’. Under Departmental policy, a component of assessing a person against PIC 4001 for temporary or permanent migration is the provision of a police certificate for each country in which that person has lived for 12 months or more, over the last 10 years, since turning 16 years of age. A police certificate is a statement provided by the appropriate authority that provides evidence about whether or not the person has a criminal history. This statement is the key source of information as to a person’s character.

10. As the applicant is required to satisfy PIC 4001 for the grant of the visa, regulation 2.03AA applies here. This regulation states as follows:

    Reg 2.03AA Criteria applicable to character tests and security assessments

    (1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

    (2) If the Minister has requested the following documents or information, the person
    has provided the documents or information:

    (a) a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b) a completed approved form 80.

    Note: For paragraph (a), an example of an appropriate authority is a police force.

    (3) The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.

11. The issue in this matter therefore is whether, at the time of decision the applicant meets these legal requirements set out in Schedule 2 to the Regulations.

12. The Tribunal carefully questioned the applicant at the hearing and also considered documentary evidence provided in support of his application. The Tribunal is satisfied that the applicant has provided police certificates and other statements from appropriate authorities for all countries that he has resided in for 12 months or more in the past 10 years, after attaining the age of 16 years. The Tribunal accepts his oral evidence that this has included Australia where he has lived since arrival in October 2009, and also the Republic of Peru where he spent his formative years and other time until moving to Australia.  This is consistent with his Form 80 (now lodged) and declaration made on 30 March 2019.

13. The police certificates which the Minister required the applicant to produce, have been provided from the Peruvian National Police and the Peruvian General Attorney’s Office, National Criminal Records Register. These documents were presented as certified translations.  The applicant also provided a National Police Certificate dated 29 May 2018 from the Australian Federal Police. These documents show no history of criminal conduct or Court recorded offences.  The Tribunal finds from these documents that the applicant meets the prescribed criterion in subclause 2.03AA(2)(a).

14. The Minister also required the applicant to provide a completed approved form 80. At the hearing, the applicant explained to the Tribunal that his Registered Migration Agent had recently been suspended by the MARA professional body (as confirmed in the applicant’s Statutory Declaration dated 30 March 2019.  As a consequence, he had not been able to provide the required form 80 as his Registered Migration Agent was not responding to his request for certain documents or information and was not co-operating with the applicant when he managed to spec to his former agent.

15. At the hearing the applicant requested more time to produce a completed approved form 80.  The Tribunal was not inclined to allow further time given this form has been requested of him by the Department prior to the making of the delegate’s decision and was not forthcoming at any time since then - up to the date of hearing.  The Tribunal explained to the applicant that a completed approved form 80 is a prescribed requirement under the Regulations and there is no provision for the Tribunal (on review) to waive this requirement.

16. Following the hearing the applicant appointed a new registered migration agent.  The representative provided a completed approved form 80 prior to the Tribunal making a final decision on this matter.  I have considered the particular circumstances of the applicant in respect of the suspension of his former migration agent and the consequent difficulties this has imposed on the applicant to provide the requisite form 80. Although no extension of time was given, the Tribunal has nevertheless considered this new document lodged on 31 March 2019.

17. The Tribunal finds that at the time of this decision the applicant has provided a completed approved form 80.  The applicant therefore, meets the prescribed criterion in subclause 2.03AA(2)(b). This is in addition to the required police certificates from an appropriate authority in the applicant’s country of former residence to meet subclause 2.03AA(2)(a).  Therefore, the Tribunal finds that the applicant meets subregulation 2.03AA(2).

18. As the prescribed criteria are satisfied, regulation 2.03AA overall is met.

19. For the above reasons, the applicant satisfies [PIC] criterion 4001.

20. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

21. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.223 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)      the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.